## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Algh adi , 2011 IL App (4th) 100012

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. KHAL ED W. AL GHADI , Def endant- Appellant.

District & N o. Four th District Docke t No. 4-10-0012

Filed October 17, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s convictions for robber y and residential burg lary wer e aff irmed, but the circ uit cler k’s assessment of fines an d fees on the residential burg lary conviction was vacated, the cause was rema nded for

a hear ing to deter

mine which fee s and fi n es wer e in relation to the reside n t i al burg lary conviction, and the trial court was direc ted to consider applying the cre dit arising from def en dant’s prese ntence incar cer ation when it re imposes the fines and f ees.

Dec ision Under
Review Appea l from the Circuit Court of Champaig n County
, N o

. 08-CF- 729; the Hon. Thomas J. Difanis, J udg e, pre siding.

J udg ment Affir med in part; vacated in p ar t ; appeal dismiss ed in part; and cause

rema nded with direc tions.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Nanc y L

. Vi n ce n t , all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

J ulia Ri etz, State’s Attorney
, of Urba na (Patrick Delfino, Robert J

. Bide rman, and Ana s t acia R. Br ooks, all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel PRES I DI NG J USTI CE KNECHT delivere d the judgme nt of the court, with opinion.
J ustices Turne r and A

ppleton concur

red in the judg ment and opinion.

OP INION

¶ 1 In Marc h 2009, a jury found defe ndant, Khaled W. Alghadi, guilty of robber y (720 I L CS 5/18-1(a) (West 2006)). In April 2009, the trial court sentenc ed him to 7 y ear s’ imprisonment with cre dit for 313 day s previously serve d. Def endant appea led, and t h i s court ultimately dismiss ed his appea l for lack of jurisdiction beca use his notice of appea l was untimely

. People v. Alghadi
, No. 4-09-0424 (De c. 6, 2010) (unpublished order under Supreme Court Rule 23). ¶ 2 In September 2 0 0 9, defe ndant pleade d guilty to residential burg lary (720 I L CS 5/ 19-3 (West 2006)), pursuant to an open plea. In October 2009, the trial court sentenc ed him to 15
y ear s’ imprisonment to run concur rent with the robber

y sentenc e and g ave him cre dit for 457 day s previously serve d. At the sentenc ing hearing, the court failed to specific ally identify any assessed f ees a nd fines. ¶ 3 T h er ea ft er , defe ndant was assessed two $20 Violent Crime Victims Assista n ce Ac t (VCVA) fines and two $5 drug -cour t fee s. In Fe bruar

y 2010, the circ uit cler

k sent defe ndant
two notices for collection of his unpaid costs and fines in the amounts of $1,868.75 and $432.06. Be cause nothing had been paid, the circ uit cler k assessed two late fee s of $187.50 and $43.35 and two c ollection fee s of $431.25 and $99.71. ¶ 4 Def

endant ap p ea l s t h e j u d gm en t on his residential- burg lary conviction, arguing the following : (1) the c ircuit cler k lacke d authority to assess the two $20 VCVA fines and the
two $5 drug -cour

t fee s; (2) i f t he assessments wer e proper ly imposed, then defe ndant is entitled to a $5-per -day cre dit ag ainst his fines under section 110-14(a ) of t h e Code of Criminal Procedur e o f 1963 (Criminal Procedur e Code) (725 I L CS 5/110-14(a) (West 2008)); and ( 3) the c ircuit cler k lacke d authority

to assess the late a

nd collection fe es.

-2-¶ 5 I . BA CKGROUND

¶ 6 On April 16, 2008, the S t at e ch ar ged defe ndant in a two-count information with (1) residential bur g lary

(720 I L CS 5/ 19-3 (West 2006)), a Class 1 felony (720 I L CS 5/ 19-3(b) (West 2006)); and (2) robber y (720 I L CS 5/18-1(a) (West 2006)), a Class 2 felony (720 I L CS 5/18-1(b) (West 2006)). In J anuar y 2009, the trial court g rante d defe ndant’s motion to sever the counts of the indictment. Although the counts wer e sever ed, the circ uit cler k reta ined the same trial number

of No. 08-CF -729 for

both char g es. ¶ 7 In Marc h 2009, the case proce eded to a jury trial on the robber y count, and the jury found defe ndant guilty

. In April 2009, the trial court sentenc ed him to 7 y ear s’ imprisonment with

cre dit for 313 d ay s previously serve d. Def endant appea led, and this court ultimately dismiss ed his appea l for lack of jurisdiction beca use his notice of appea l was untimely

. People v. Alghadi
, No. 4-09-0424 (De c. 6, 2010) (unpublished order under Supreme Court Rule 23). ¶ 8 In September 2009, defe ndant pleade d guilty to the r e s id e nti a l- b u r g la r y c h a rg e (720 I L CS 5/19-3 (Wes t 2006)), pursuant to an open plea. The trial court hear d the fac tual basis, admonished defe ndant, and acc epted the guilty plea. On October 22, 2009, t h e court sentenc ed defe ndant to 15 y ear s’ imprisonment to run concur rent with the robber

y sentenc e and g ave him cr edit for 457 da y s previously

serve d. ¶ 9 At the sentenc ing hear ing, the trial court failed to specific ally identify any assessed f ees and fines. A docket en t ry m ad e the same date shows defe ndant was assessed a char g e of $1,250 for costs and would be assessed “[f]i nes and/or [c] ost/[ p]enalties and [f] ees” as part of his sentenc e for the residential- burg lary conviction. Howeve r, this docket entry does not mention any VCVA fine or drug -cour t fee

. Fur ther, the docket entry provides “[a]ll financ ial obligations shall be paid in equal monthly installmen t s to the Champaig n County Circuit Clerk by .” (It appea

rs the due date was inadver tently left out of the docket entry .) There afte r, defe ndant was a ssessed two $20 VCVA f ines and two $5 drug -cour t fee s. ¶ 10 On November 10, 2009, defe ndant filed a motion to withdraw his plea, or alter natively
, to rec onsider the sentenc e, arguing his counsel was ineffe ctive for g iving him the following mistaken information: (1) if he entered a guilty p l ea, the t rial court would sentenc e him to 1 0 y ea rs ’ i mprisonment; and (2) if he proce eded to trial and was convicted, he could be
sentenc ed up to a 30-y ear extend ed -t er m s entenc e. Fur ther, defe ndant arg

ued his 15-y ear sentenc e wa s excessive. On De cembe r 22, 2009, the c ourt denied de fenda nt’s motions. ¶ 11 On J an u ary 5
, 2 0 1 0
, d ef endant filed a notice of appea l for his residential-bur g lary conviction. I n Fe bruar

y 2010, the circuit cler

k sent defe ndant t wo not ices for collection of his un p ai d co s t s and fines in the amounts of $1,868.75 and $432.06. Be cause nothing had been paid, the circ uit cler k assessed two late fee s of $187.50 and $43.35 and two collection fee s of $431.25 and $99.71.

¶ 12 I I . ANALYSI S ¶ 13 On appea l, defe ndant argues the following : (1) the circ uit cler k lacke d authority to assess two $20 VCVA fines and the two $5 drug -cour t fee s; (2) if the assessments wer e prope rly imposed, then defe ndant is entitled to a $5-per -day cre dit ag ainst his fines under section 110-

-3-1 4 (a) of the Criminal Procedur e Code (725 I L CS 5/110-14(a) (West 2008)); and (3) th e

circ uit clerk lac ked author ity to assess the late a

nd collection fe es. ¶ 14 First, defe ndant argues the trial court did not order defe ndant to pay the two $20 VCVA fines and the two $5 drug -cour t fee s. Consequently
, defe ndant argues these fines should be

vacated because the circ uit cler k lacks authority to impose mandatory fines. Alternatively
, defe ndant ar gues he should be e ntitled to a $5-per- day cre dit ag ainst these fine s. ¶ 15 The State conce des the trial court never judicially imposed the VCVA fines and the drug

cour t fee s. Howeve r, the State argues this court should reimpose a mandatory $20 VCVA fine pursuant to section 10(c) (2) of the Violent Crime Victims Assistance Act (Ac t) (725 I L CS 240/ 10(c) (2) ( West 2008)) beca use “def endant insists *** the trial court imposed no fines.” Additionally
, the State argues defe ndant would not be entitled to $5-per -day cre dit if the VCVA assessment is reimposed by this court. Fur ther, the State arg

ues this court lacks jurisdiction to vaca

te any fines an d fee s the trial court imposed in connec tion with defe ndant’s robber

y conviction b ec au se defe ndant’s J anuar y 2010 notice of appea l only ref ers to the r esidential-bur g lary conviction. ¶ 16 In his reply brief, defe ndant ag ree d this court has the ability to reimpose mandatory fines. I f reimposed, defe ndant re q u es t s any imposed fines be offse t by his sentenc e cre dit. Howeve r, defe ndant notes the State assumed the fines wer e assessed per count, but the “counts [were ] notdelineate d in the cler k’s re cords of

monetary char g es.” ¶ 17 Section 10(b) of the Act (725 I lCS 240/10(b) (West 2008)) g ra n t s t h e t ri al court the authority to c ollect “an additional penalty *** from eac h defe ndant upon conviction of any felony” in the amount of $4 for eac h $40, or fra ction there of, of fines i m p o s ed

. Fur ther, section 10(c) (2) of the Act (725 I L CS 240/10(c)( 2) (West 2008)) allows the court to a ssess

a defe ndant a fin e o f “$ 2 0
, for any other felony or misdemeanor” when no other fine is imposed. See People v. Long
, 398 I ll. App. 3d 1028, 1031-32, 924 N.E.2d 511, 514 (2010) (VCVA a ssessment is a fine)

. ¶ 18 Fur

ther, section 5-1101 o f t h e C o u n t i es C ode (55 I L CS 5/5-1101(d-5) (West 2008))
g rants counties the authority to enac t by ordinanc e a “$10 fee to be paid by the defe ndant on

a j u d gm en t of guilty *** to be place d in the county g ener al fund and used to financ e the county mental health court, the county drug court, or both.” The drug -cour t fee is considere d

a fine beca

use it is not intended to reimburse the State for costs incurre d in pr osecuting the defe ndant. People v . Childs , 407 I ll. App. 3d 1123, 1133, 948 N.E.2d 105, 113 (2011). ¶ 19 In this case , the rec ord reve als defe ndant was ass es s ed duplicate fee s and fines for the following : (1) a $5 document-stora g e fee; (2) a $5 automation fe e; (3) a $100 circ uit-clerk fee ; (4) a $25 court-se curity fee ; (5) a $10 ar re s t ee’s medical assessment; (6) a $50 courtfinanc e fee ; (7) a $30 State’s Attorney assessment; (8) a $20 VCVA fine; and (9) a $5 drug

court fee

. Presumably
, defe ndant was twice assessed these fee s and fines beca use his robber

y char g e and his residential- burg lary char g e wer e sever ed. Howeve r, the orig inal case number

was reta ined (Champaig n county case No. 08-CF- 729) for both case s, and the circ uit cler k’s “fe es & fines information” (see appendix) does not clea rly set forth what assessments wer e made in the residential- burg lary conviction and what assessments wer e made in the robber y conviction. From a review of the record, it appea rs t he first “se t” of assessments relates t o

-4-the robber y conviction beca

use the robber

y sent en ce wa s i mposed first and the late and collection fe es imposed appe ar to be g rea ter. ¶ 20 Also, the rec ord shows the t rial court did not impose the t wo $20 VCVA fines a nd the
two $5 drug -cour

t fee s, and the fee s l at er appea red on the circ uit cler

k’s “fine s & fee s information.” The imposit ion of a fine is a judicial act, and the circ uit cler k has no authority
to levy fines, including mandatory fines. People v. Scott
, 152 I ll. App. 3 d 868, 873, 505 N.E.2d 42, 46 (1987). There fore
, any fines imposed by the circ uit cler k’s office are void from their inception. See Scott
, 152 I ll. App. 3 d at 8 7 3
, 505 N.E.2d at 46 (ca use rema nded for
proper imposit ion of the VCVA f ine by the trial cour

t). ¶ 21 Assuming the circ uit cler k imposed the $20 VCVA fine and the $5 drug -cour t fee as par

t of defe ndant’s residential- burg lary conviction, we vacate those fines. Although the fines in this case wer e improperly assessed by the circ uit c lerk, this c ourt has authority to reimpose mandatory

fines. S ee Scott
, 152 I ll. App. 3d at 873, 505 N.E.2d at 46 (f ines established by the VCVA are mandatory ); see also People v. Folks
, 406 I ll. App. 3d 300, 305, 943 N.E.2d 1128, 1132 (2010) (“A lthough the statutory languag e relating to the drug -cour t a ssessment is permissive, the assessment is mandatory once the county

board e nacts the or dinance .”). ¶ 22 Howeve r, we wil l n o t reimpose these fines beca use the rec ord reve als defe ndant was alre ady assessed a $20 VCVA fine and a $5 drug -cour t fee

. Although a defe ndant may be char g ed with multipl e counts within the same case numb er , t h e defe ndant may only be assessed (1) one document-stora g e fee
, (2) one automation fee
, (3) one circ uit-clerk fee
, (4)

one court-se curity fee
, (5) one arr estee ’s-medic al assessment, (6) one court-f inance fee
, (7)

o ne State’s Attorney assessment, (8) one VCVA fine, and (9) one drug -cour t fe e. T h e

sever ance of the residential- burg lary ch arge and the robber y char g e within the same case number is of no moment. Acc ording ly
, althoug h this issue was not raised by the parties, we

vacate all duplicate fee s and fines imposed in relation to the residential- burg lary conviction. ¶ 23 Additionally
, we are not va cating the collection and late fee s assessed in r elation to the residen ti a l-burg lary conviction beca use these fee s are not proper ly befor e us on direc t appea l. See People v . Jake , 2011 I L App (4th) 090779, ¶

24, 2011 WL 3587470 (this court lac ked jurisdiction to consider the defe ndant’s lat e- and-collection-fe e argument beca use the fee s

wer e asse ssed af

ter the de fenda

nt filed his notice of a

ppeal)

. ¶ 24 Her e, defe ndant filed his notice of appea l for th e re s i d en t i al -burg lary conviction on J an u ar y 5
, 2010. Fr om a revie w of the rec ord, it appea rs defe ndant was assessed late and collection fee s for unpaid costs and fines in Fe bruar y 2010. There fore, we d o not have jurisdiction to consider the merits of defe ndant’s argument in this case (def endant argued the circ uit cler

k lacke d authority to assess the late and collection fee s) and, acc ordi n g ly
, we dismiss this portion of de fenda nt’s appea l. F urther, we note defe ndant asks us to va cate all late and collection fee s imposed by the circ uit c lerk. How ever , we have only addre ssed the late an d co l l ec tion fee s imposed in the residential- burg lary case beca use it is the only conviction subject to this appea l.

¶ 25 I I I . CONCLUSI ON ¶ 26 For the rea sons stated, we aff irm defe ndant’s conviction and sentenc e. We (1) vacate the

-5-circ uit cler k’s assessment of fines and fee s imposed in the residential-burg lary conviction, and (2) rema

nd for a hearing at which the trial court and the parties can deter mine which fee s and fines listed in the circ uit cler k’s “fe es & fin es i n fo rm ation” are in relation to the residential- burg lary conviction and vac at ed b y o u r order

. We also direc t the trial court to consider the application of prese ntence cre dit at the time it reimposes fines and fee s. Fur ther, we dismiss those parts of the a ppeal f or which w e lac k jurisdiction.

¶ 27 Affir

med in part; vacated in part; appea l d i s m i s s ed i n p art; and cause rema nded with direc tions.

-6-